474 DISTRICT, COURT FOR THE CANAL ZONE.
criminal offense; but there has not been called to the attention of the court nor has the court been able to find any provision in the laws of the Canal Zone prescribing a criminal responsibility for the reentry of a person who has previously been deported merely as an undesirable or as a person likely to become a public charge.
Criminality can not be sustained upon presumed or implied provisions of the law. The rule seems to be of universal acceptance that an act not prohibited and made punishable by statute or ordinance can not be punished as a crime, and the court can not by construction make that a crime which is not so prohibited.
16 C. J., 64.
U. S. vs. Dietrich, 126 Fed., 676.
U. S. vs. Sandefuhr, 145 Fed., 49.
U. S. vs. Keitel, 157 Fed., 396.
Ex parte Rickey, 100 Pac., 134.
The Sandefuhr case is particularly pertinent. The indictment charged the defendant with having knowingly and unlawfully shipped a keg containing 15 gallons of spirituous liquors, the brands and marks thereon niot being visible. Section 3449, R. S., provided that whenever, a person ships, transports, or removes any spirituous liquors under any other than the proper name or brand known to the trade as designating the kind and quality of the contents of the casks or packages containing the same, he shall-be criminally responsible. The Secretary of the Treasury by regulation provided that casks and packages in which distilled spirits were shipped or transported must visibly bear the stamps, marks, and brands required by law, so that the same might readily be examined by the revenue officers. In deciding that the indictment did not charge a crime, the court uses the following language:
There is nothing in the statute which makes the failure to put any risible marks or brands on the package containing the liquor an offense. * If Congress had made the violation of this regulation a criminal offense the indictment could be sustained.
In the instant case the President could have made a regulation prohibiting the return to the Canal Zone of a person deported therefrom on the grounds stated in the information, and had such orders contained such a prohibition, then this information would be sustained; but the Executive Orders, not having made such a prohibition, the court is powerless to construe them as if such prohibition had been made.
The demurrer is sustained. The defendant is ordered discharged and his bail exonerated.